An interesting decision from a New York Appellate Court. In Amoah v. Mallah Management, the court faced the issue whether an undocumented worker who used fraudulent documentation to get his job can receive workers compensation benefits for reduced earnings. The could said he could, rejecting the employer's contention that IRCA (interpreted by Hoffman Plastics) preempted the claim. Some excerpts from the decision:

We start with the presumption that Congress "'[did] not intend to supplant state law'" . . . especially laws regarding "the states' historic police powers over occupational health and safety issues." It is also well settled that the status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers' compensation benefits or recovery for lost earnings in a personal injury action predicated on state Labor Law violations. . . ..

In Balbuena, the Court of Appeals explained that IRCA seeks to combat the employment of undocumented workers and found that such objective would not be hindered – and, indeed, would be furthered – by state laws imposing liability on employers under the Labor Law for their undocumented workers' injuries. . . .

[W]e find that "limiting a [reduced earnings] claim by an injured undocumented alien would lessen an employer's incentive to . . . supply all of its workers the safe workplace that the Legislature demands." Thus, such a result would actually provide an economic incentive to employers to violate IRCA by disregarding the employment verification systemand would undermine IRCA's primary goal of combating the employment of undocumented workers. On the other hand, it is unlikely that denying wage-replacement benefits to injured unauthorized workers will deter illegal aliens from violating IRCA in order to obtain employment in the first place. . . .

In contrast to the back pay at issue in Hoffman – which represented wages that the employee would have earned had he not been illegally terminated – wage replacement benefits under the Workers' Compensation Law constitute a form of consideration (i.e., insurance) that formed a part of the contract for services already rendered by the employee.

Makes sense to me. Even if one accepts the rationale of Hoffman, denying wage replacement benefits involves another set of issues. Moreover, undocumented workers can still file tort suits and, obviously, can still get hurt while working. So preventing benefits because of the workers' immigration status is inviting problems that workers comp was supposed to eliminate.

October's unemployment numbers are in and, surprise, they're not pretty. Even worse than experts expected. According to the New York Times:

The American economy lost another 240,000 jobs in October, the government reported Friday, as cash-strapped consumers pulled back sharply and businesses hunkered down, intensifying the distress gripping much of the country. The unemployment rate spiked to 6.5 percent from 6.1 percent, the highest level since 1994. Many analysts now expect unemployment will reach 8 percent by the middle of the year. Coupled with revisions to September’s data — which now show a loss of 284,000 jobs, down from an initial estimate of 159,000 — the economy has shed 1.2 million jobs since the beginning of the year. More than half the job losses have been in the last three months alone. . . .

The number of unemployed Americans leapt by 603,000 in October to 10.1 million — the largest number since 1983. More than 22 percent of all unemployed people have been out of work for six months or longer — another level not reached in a quarter-century. Only 32 percent of all unemployed people were drawing state benefit checks in October because of restrictions on eligibility for part-time workers and those who were not in their jobs long enough to qualify. More than half of all unemployed people drew benefits in the 1950s, and about 45 percent received state checks during the last recession in 2001. . . .

Companies have been hiring tepidly and laying off workers throughout the year, as business has slowed, while cutting working hours for those on the payroll. That trend continued in October: The so-called underemployment rate — which includes people working part-time for lack of full-time positions and those who have given up looking for work — rose to 11.8 percent, up from 8.4 percent a year earlier. . . .

Wages have effectively shrunk for most workers, as rising costs for food and fuel have more than absorbed meager increases in pay. In October, weekly wages for rank-and-file workers — those not in supervisory or managerial positions — grew 2.9 percent from October 2007, almost certainly below the rate of inflation. . . .

More troubling than the unemployment rate, which is not at a historical high but is on an alarming trend, is the underemployment and real wage numbers. Not only are employees' wages not keeping up with inflation, but they're often unable able to work more hours (or even get full-time work) to make up the difference. It's going to take a long time to reverse these trends and there is still probably a ways to go before it even begins.

You knew this was coming. Next week, the "Plum Book" is going to be released. Officially titled "United States Policy and Supporting Positions," this is the book this lists all current political offices and their salaries. Basically, it's the Sears Wish List for political wannabees. Also of use is the Obama website, www.change.gov, which has an on-line form to apply for administrative jobs. It's unclear exactly how that process will work, but the site says that more info will be forthcoming.

Of course, the top labor and employment job will likely not be filled via the website. I haven't heard word yet on any of those positions--e.g., Secretary of Labor and senior assistants, NLRB members and General Counsel, EEOC members, etc.--but if you've got any scuttlebutt on these, send it in!

It should be noted that no jobs will be listed in the book for the
office of the vice president. A spokesman for the Committee on Homeland
Security and Government Reform explained that the vice president's
office is technically neither part of the executive or legislative
branch.

It looks like the anti-affirmative action proposition is about to go down in defeat in Colorado. The latest figures show that Colorado Amendment No. 46, to end affirmative action on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting, is losing 51% to 49% with 98% of the precints reporting.

Melissa Hart, co-chair of the “No on 46 Campaign” and professor at the University of Colorado Law School, told BNA the defeat of the measure shows that Colorado “stands for a different set of values than this initiative, and voters didn't want to see this in their constitution.”

Hart said the measure was “so deceptively worded” and full of wide-ranging consequences. For example, the amendment could have been interpreted to eliminate educational programs like science camps for girls, she said. “Anything that in any way considered race or gender would have been a risk.” . . . .

“Barack Obama is a remarkable, extraordinary man who was given great opportunities in his life and was able to excel at each step of the way,” she said. Obama's election underscores “the importance of assuring opportunity and access for everyone.”

“Any suggestion the election of Obama means we no longer need affirmative action is just wrong,” she added.

Keeping the football theme going, the Washington Post has an article involving the NFL and the NFL Players Union. Apparently, NFL Commissioner Goodell has been making a new push to fine players for perceived dangerous hits on the field. Goodell has stated that he's looking out for the players' health. In an ironic twist, the union is objecting--arguing that the fines are being given out too often and unfairly penalizing players who play aggressive within the normal confines of a inherently violent game:

Richard Berthelsen,
the union's acting executive director, said players believe the
league's discipline for on-field actions, those that draw penalties as
well as those that do not, has become excessive. The union will seek in
labor talks with the league to establish a new system for appeals by
which players could attempt to have fines or suspensions overturned or
reduced by an independent arbitrator, Berthelsen said in a telephone
interview this week. . . .

The
union appears to be giving formal backing to the players' complaints,
first in a recent written statement posted on its Web site and now with
Berthelsen's comments. Berthelsen said he did not have data
available regarding the total amount of this season's fines. But
discipline for illegal hits has increased sharply this season, he said. . . .

The league declined
to release specific figures but indicated that fines for on-field rules
violations are up marginally this season because of what it called
strict enforcement of player safety rules. According to the league,
historically there are about 20 such fines assessed per week after a
review of the approximately 2,300 plays in that weekend's games.
Players are told in their fine letters that "player fines collected by
the league are used to support the [union's] Players Assistance Trust
and charitable initiatives supporting youth, education and
sports-related medical research."

Earlier this season, Goodell
sent a memo to players and coaches stressing that player safety was
important to the league and warning that illegal hits that pose injury
risks would result in severe punishments. . . .

Currently, any appeals by players of
disciplinary measures for illegal hits are heard by Goodell or a person
he designates. That's the same arrangement used for deciding appeals by
players for discipline imposed by the commissioner for off-field
misbehavior under the NFL's personal conduct policy. Berthelsen
said the union also will seek to use an outside arbitrator for those
appeals. The union pointed out on its Web site that it has had success
recently in using the arbitration process to reduce team-imposed
penalties on several players. Penalties by teams can be appealed to an
arbitrator through a grievance by the union, under the sport's labor
agreement.

Despite the unique nature of the work, this dispute comes down to an age-old argument: the process of determining employee discipline. Goodell wants to keep his discretion, while the union was more independent review. All sports have some issues that go to an independent party (drug testing in particular). Whether Goodell ever bends on this, however, remains to be seen.

With the firing of Ty Willingham at the University of Washington and the resignation of Ron Prince at Kansas State, the 2008 regular season of college football will conclude with the controversy over the poor record of hiring African-American Division IA (Football Bowl Subdivision – FBS) head football coaches still continuing to make headlines. Their departure will leave only four African-American and two other head coaches of color. College football is still far behind other college and professional sports.

The Institute for Diversity and Ethics in Sport (TIDES) at the University of Central Florida today released The Buck Stops Here: Assessing Diversity among Campus and Conference Leaders for Division IA (FBS) Schools in 2008-09. This study examines the race and gender of conference commissioners and campus leaders including college and university presidents, athletics directors, and faculty athletics representatives for all 120 FBS institutions. The study also includes head football coaches, offensive and defensive coordinators, assistant coaches, and football student-athletes. Finally, the faculty as a whole is examined.

Richard Lapchick, who is the primary author of the study as director of The Institute, said, “The leadership which is the power structure in college sport remains overwhelming white. In FBS institutions, this includes 92.5 percent of the presidents, 87.5 percent of the athletics directors, 92.6 percent of the faculty athletics reps, 83.3 percent of the faculty and 100 percent of the conference commissioners. Only 3.5 percent of the faculty are African-American and 3.4 are percent Latino.”

These are not surprising findings, but still nonetheless troubling. In a sport that has a large number of black and Latino participants, it is hard to believe that there are not more qualified minority coaches out there for the picking.

This is not my field of concentration, so I would be interested to hear from the sports law community whether there are initiatives being undertaken, similar to the Rooney Rule in the NFL that Jeremi Duru (Temple) has written about, that seek to address this problem.

Stories like [the IBM virtual strike] offer a glimpse into the powerful potential of the emerging 2.0 world, a place where workers use social networking tools to quickly reach across national and workplace borders, outflank their bosses, and wield collective power. But right now, the type of virtual solidarity seen in the IBM strike remains more promise than reality. People are willing to sign petitions, donate money, trade information and join in political discussions online, but translating these activities into labor solidarity built on trust and a willingness to take economic or physical risk on another's behalf is exceedingly rare.

Why this didn't happen sooner, I will never know. The EEOC sued the production company of the television show Cheaters this week on behalf of two employees who allege they where sexually discriminated against because of the show's hostile work environment.

The suit alleges that the company fired Amanda Hayes and Lorienne Swift and that they were discriminated against because of the environment created by the show. For those that don't know (or cant figure it out from the name of the show), the show films people whose partners suspect they are cheating, and then tapes the confrontations of the couples.

Five female Detroit police officers have filed a federal law suit against the city, alleging the department discriminated against them by refusing to place them on light duty when they were pregnant. Instead, pregnant officers are required to use their sick leave and then go on unpaid leave.

The complaint alleges that "the policy places incredible financial burden on these women, including forcing some to rely on Medicaid in order to obtain health insurance and to use food stamps to support themselves. The policy also imposes severe emotional burdens on pregnant officers and hampers their career advancement for years after pregnancies." In short, the female officers feel forced to hide their pregnancies for economic reasons. Desperate to stay on the payroll, Officer Tisha Prater wore a girdle to hide her pregnancy until she captured a suspect following a foot chase while three months pregnant.

Prater is a plaintiff in the lawsuit, along with officers Sha-Mar Woods, Kelly Lucy, Jamaica Skender, and Angelica Robinson. Robinson, the lawsuit alleges, "was forced onto sick leave even though she had been working a desk job . . . for more than five years when she became pregnant and although DPD's own medical experts established that she was fully able to perform her job up to the end of her pregnancy." The officers are seeking damages including lost wages, restored seniority and an injunction preventing the department from continuing the policy.

Police administration officials, however, assert their hands are tied because of an arbitration ruling. The department used to allow pregnant officers to go on light duty but changed the policy in 2004, after the police officers' union filed a grievance on behalf of a male officer with an off-work injury. The officer complained that 17 pregnant officers were able to get light duty while he could not. As a result, the department now only allows light duty for injuries suffered on the job.

There are about 800 female officers on the Detroit force. A bill to amend the state human rights law and require the department to change its policy recently passed the state House but awaits Senate approval.

Hopefully, the Senate will approve the bill requiring the department to change its policy because the policy is too broad. The main problem with the policy is that it is a "blanket rule" forcing any officer performing any job to go on leave. Robinson is the best example of the overreaching scope of this policy. Although she was able to perform her job, she was nevertheless required to leave and endure a financial burden. Thus, the department needs to, at a minimum, alter the scope of their policy to affect only those officers who are unable to perform their duties.

Classifying pregnancies with other off-work injuries presents another problem because the effect of the policy on female officers who become pregnant as compared to other officers who become injured with a sprained ankle, for example is different. The complaint alleges that pregnant officers are hampered in their career advancement for years after their pregnancy. Other officers, presumably, do not endure this same career halt when they return from leave. Such disparity may strengthen the officers' pregnancy discrimination claims for it tends to show that officers with off-work injuries not related to pregnancy are treated differently. Perhaps if the department develops an alternative "maternity-friendly" or "maternity-conscious" policy that does not harm the career advancement of women simply because their temporary leave is related to pregnancy the policy would withstand scrutiny.

The panelists will examine a variety of global health workforce issues in medicine and nursing, including a review of the World Health Organization's Code on Recruitment of Health Care Workers and AcademyHealth's Voluntary Code of Ethical Conduct for the Recruitment of Foreign-Educated Nurses to the United States.

This past Tuesday, the voters of the City of Milwaukee overwhelmingly (68%) approved the sick pay ordinance. Under this ordinance, private employers in Milwaukee must provide paid sick leave to workers, who earn the benefit at the rate of one hour of sick pay for every thirty hours of work.

Employers would have to grant 72 hours of sick leave per calendar year or 40 hours if they have fewer than 10 employees.

Although the ordinance is due to take effect in about 100 days, the Metropolitan Milwaukee Association of Commerce has filed notice that it intends to legally challenge the law on numerous grounds, among others, that (1) it is inconsistent with federal and state laws for family and medical leave; and (2) oversteps the city's authority to require sick pay from employers outside the city that have employees living in Milwaukee.

I am no expert on the second issue, but the first ground of challenge seems utterly without merit. The federal FMLA and state leaves law provide a floor under which no law may go, but states and municipalities have always been free to be more generous, and in this case, provide some paid leave to workers. The fact that the business group believes the ordinance will cause them economic harm is not grounds for setting the ordinance aside.

I am hopeful that the court deals quickly with this matter so that the ordinance can go into effect when scheduled and start providing much-needed relief for the workers of Milwaukee when they become sick.

The U.S. Supreme Court ruled in Hall Street Associates, LLC v. Mattel Inc., that §§10 and 11 of the Federal Arbitration Act (FAA) provide “exclusive regimes for the review provide by the [FAA],” yet it explicitly declined to foreclose “other possible avenues for judicial enforcement of arbitration awards.” Thus, although it seemingly decided a narrow issue before it, the Court’s decision actually raised a series of additional questions.

Such questions include if and how a party could proceed under state law so as to expand, by agreement, the scope of judicial review of an arbitration award. While the U.S. Supreme Court termed it “arguable” that parties could seek “enforcement under state statutory or common law” of an agreement for expanded judicial review of arbitration awards, the California Supreme Court recently held that the “California rule is that the parties may obtain judicial review of the merits [of an arbitration award] by express agreement.” The California high court’s ruling in Cable Connection, Inc. v. DIRECTV Inc. may herald receptivity on the part of state courts to an assortment of arbitral review mechanisms available under state law.

Very interesting and thought-provoking article. It indeed will be interesting to see if more states move in the direction of California in the area of judicial review of arbitration awards.

Emails are shooting around to Geek Squad employees, encouraging them to join the Communications Workers of America union, so Best Buy retorts with emails of its own to voice its concerns. In an email sent by corporate management, Best Buy spoke of its concerns about unions, that unions would hinder its ability to speak with and negotiate with each Geek Squad employee individually. For, there's nothing like the closeness created when one employee negotiates with a hydra. That's just one fun piece of FUD (fear, uncertainty, doubt) in the email, posted inside...

[A taste of the email below]:

Good morning:

Each of you may have been receiving emails from anonymous individuals identifying his/herself as Wilt Chamberlain, Double Agent, Geek Squad, Agent Agent or Magic Johnson. These emails from an anonymous sender(s) are asking you to ‘unite’, directing you to the Communication Workers of America (CWA), directing you to a Forum and soliciting signatures on a petition for legislation called the Employee Free Choice Act (EFCA) . . . .

Modifications are needed to get through this difficult time. This is happening in every company in America. Today, we are in a lot stronger position than most companies.. Economic times fluctuate. Decisions have to be made in both good times and in tough times. We always want your input. We want to hear your voice, your concerns and want to make changes in a respectful manner. We want to continue to work with you directly so that questions can be answered and so that misunderstandings can be addressed without filters. And we also recognize that as a management team we sometimes fail to follow the best processes – never intentionally - but your direct feedback and input helps all of us learn to be better in the future in service of our employee and customer.

One email suggested that Best Buy is afraid of Unions.

We are not afraid – We are concerned.

We are concerned about being able to talk with you directly.

We are concerned about being able to continue to get your feedback, input and suggestions in an open forum.

We are concerned that a union could result in a lack of flexibility to address market conditions, customer desires and your own desires and needs.

To whoever is using the name of the great Wilt Chamberlain.

Over the last thirty years, union membership has dropped from 35% of total workers to just over 7% of the private sector. Did you ever ask yourself why any business loses market share? In one email the CWA is mentioned. To find out more about the CWA, take the time to search around the links at http://unionfacts.com/unions/unionProfile.cfm?id=188 . . . .

Let me say that we are not afraid of unions at Best Buy. We truly believe that union representation is not in the best interests of the company, our customers or our employees. If you have any issues, concerns or ideas please do not hesitate to talk to your immediate supervisor or reach out to me.

In closing, let me say that we are betting the farm on our employees. What we are concerned about is putting something or someone between our employees and their supervisors that eliminates transparency, honesty and our ability to win with our customers by creating a world class experience for each of our employees. Feel free to reach out share your thoughts, ideas or concerns to me at anytime . . . .

The face of the modern anti-union campaign? Does Best Buy have troubles with the coming Obama administration and its embrace of labor concerns?

At the very least, corporate America, there is a new sheriff coming to town . . . .

Kennedy v. DuPont Savings Plan Administrator, No. 07-636 has become even more curious. A participant’s estate claimed to be entitled to receive the participant’s death benefits because it was his secondary beneficiary. The dispute was whether the participant’s primary designation had been rendered ineffective by a domestic relations order that was not a qualified domestic relations order (“QDRO”). On October 28, 2008, the Supreme Court requested the parties brief a “new question,” which question suggests that the Court is confused. The Supreme Court certified the following general question for review:

Was the Fifth Circuit correct in concluding that ERISA’s Qualified Domestic Relations Order provision, 29 U.S.C. §1056(d)(3)(B)(i), is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA?

This question may be answered sensibly by first establishing the source of the right whose waiver is at issue. There would appear to be no disagreement that under ERISA, planterms determine whether the divorcing spouse is a beneficiary entitled to receive the pension benefits. Neither party, however, took this approach.

The disagreement is about how may such designation be rendered ineffective, thereby entitling the secondary beneficiary, the participant’s estate in this case, to the benefits. One would presume that the plan administrator would argue that a designation may only be rendered ineffective if it is revoked pursuant the plan terms. One would presume that the participant’s estate would argue that the designation may also be rendered ineffective by common law principles. Neither party so argued. Thus, the Supreme Court did not resolve the issue by setting forth the circumstances, if any, in which the issue is associated with an ERISA gap, which common law may bridge. The Supreme Court, however, requested briefs regarding:

Whether 29 U.S.C. §1104(a)(1)(D), mandating administration of a plan in accordance with plan documents, required that the distribution in question be waiver of her interest was not otherwise subject to statutory bar. made to Liv Kennedy, even on the assumption that a

The Court, like the plan administrator, is focusing on the plan administrator’s payment obligation, rather than the divorcing spouse’s benefit entitlement. The Court is giving the participant’s estate the chance to supplement its assertions that (1) the overriding ERISA fiduciary obligation to act “solely in the interest of the participants and beneficiaries” makes common law applicable; and (2) documents, such as designation forms, marriage certificates and common law waivers, that are not inconsistent with plan documents, determine designations.

There are three reasons why it is misleading to focus on the plan administrator’s payment obligation, which several circuits consider of little import, rather than plan entitlements.

First, it suggests that the primary purpose of ERISA is the promotion of administrative convenience, rather than the protection of the employee benefits of participants and beneficiaries. Much of the argument by the parties and amici in this case is devoted to the contrasting views of administrative burdens. Very little is devoted to the statutes that determine benefit entitlements.

Second, a focus on the payment obligation may give short shrift to ERISA mandates. These mandates, such as the prohibition on the alienation or assignment of pension benefits, must be part of plan terms, but need not be part of the plan documents. Plan fiduciaries may only follow plan documents to the extent that the terms are consistent with ERISA.

Third, fiduciaries are not always obligated to pay persons their benefit entitlements. The plan administrator devoted considerable attention to ERISA § 206(d)(3)(H), which, in concert with ERISA § 206(d)(3)(I), frees plan fiduciaries from the obligation to make benefit payments to certain persons whose benefit rights are derived from QDROs.

Conclusion:

The Supreme Court may further ERISA’s primary purpose if it issues a decision in favor of the plan administrator based on the core ERISA principle that ERISA benefit entitlements are determined by Plan terms, rather than based on the plan administrator’s payment obligation.

The article presents an argument for reclassifying and regulating commercial staffing agencies, most importantly the temporary help staffing agency. We conclude that a new legal status for profit-driven labor market intermediaries (LMIs) is essential to building a regulatory regime that can end the super-exploitation and second class status of the millions of workers deployed by profit-driven LMIs. The current legal classification of for-profit LMIs - as employers under federal and state laws - is dubious and, at best, incomplete. We argue that the legal status of commercial LMIs is a major factor contributing to the exploitation and second class status of workers deployed in labor markets through profit-driven intermediaries. First, we recount the legal history of profit-driven labor market intermediaries. This begins with the successful labor struggles and legislative efforts that first led to their regulation in the Progressive Era and closes with the campaign by the nascent temporary help service industry to place itself outside state laws which regulated the exploitative fees charged workers for access to the labor market through commercial intermediaries. Second, we contrast the unregulated legal environment for commercial staffing agencies with the extensive federal regulatory regime governing union hiring halls, labor's answer to the temporary staffing agency and the regulated structure of state-supported LMIs representing home health care aides. Based on this, we propose a new legal status for commercial LMIs that can serve as a statutory foundation for the regulation of the job-brokering functions of commercial LMIs by introducing transparency for its deployment functions and creating a legal limit on the 'hidden fees' that commercial staffing agencies charge to deployed temporary workers.

We have posted several times about employee blogging issues (here, here, and relatedly facebook here, for example), but employer blogging is a new trend according to a recent New York Times article. Apparently some employers in Silicon Valley and elsewhere are using blogs to break news about layoffs so that they can have some control over the tone and content.

The motive behind this matches the philosophy of a lot of the companies that are doing it. As the article notes,

[M]any of today’s Web companies were built on the mission of creating
transparency for users. Executives have lived that mission, blogging
about company successes. Now that bad times are coming, some of them
feel the need to make that public, too. A blog post also comes across
as more heartfelt than a press release with canned quotations.

Steven A. Carpenter, chief executive an investment
advice site called Cake Financial, described why he blogged about a layoff of 30% of his employees:

“Our whole company is
built on the idea of transparency in investing, so that was a reason
why it was important for us to do it,” Mr. Carpenter said in an
interview. He also wanted employees and outsiders to know they were
each getting the same version of the story. “It let them know what we
were up to in real time, so they didn’t get nervous about what was
going on,” he said.

The article further noted that

Companies that have blogged about their layoffs have found a
sympathetic audience. Start-ups with job openings called ex-employees
of Cake after Mr. Carpenter blogged about their layoffs. Glenn Kelman,
chief executive of real estate site Redfin, expected the public to turn
against him after he wrote about Redfin’s layoffs. Instead, 74 readers
left supportive comments on the blog. “It’s been part of the healing
process,” Mr. Kelman said

Additionally, companies that did not blog about their layoffs ended up having to respond to negative postings on other blogs, creating more PR problems. And while the article notes that this is most prevalent for web companies, human resource experts predict that it will soon become a necessity for more companies, and the article provides a couple of additional examples.

Great food for thought, and in my personal opinion, more transparency is a good thing.

Building a bit on Paul's post-election post, here's some further ideas from Bill Gould (Stanford, emeritus and former NLRB chairman). I posted on an earlier, prescient piece by Gould on his recommendation for an Obama Board, so I won't repeat those or my comments to them. However, in a recent speech to the State Bar of California Labor and Employment Law Section's Annual Meeting (I don't have a way to link to the text, but would be happy to send a copy if you email me), he's elaborated on some further ideas, which include the following:

* [M]aking lawful union and employer negotiated “conditional” recognition agreements where workers and employers are able to know the bargain that the union is likely to obtain before they vote simultaneously on the union and a proposed contract. Why shouldn’t both workers and employers know the economic facts of life at the campaign’s onset? This might diminish acrimonious propaganda from both sides and employer anti-union behavior.

* [EFCA] must be amended so as to both eliminate any automatic resort to arbitration after a designated number of days as EFCA presently provides and to provide that an employer’s ability to pay rather than an industry wide pattern be the dominant consideration in arbitration. Without these measures, unions will simply turn the tables that have been turned against them and sit back without bargaining in good faith—a result which will be just as counterproductive as our inability to address employer surface bargaining and one which will undermine the collective bargaining process itself. Arbitration must be both rare and sensitive to management competition needs.

* [Another problem with the NLRB] is the ability of employers to delay administrative procedures, in order to discourage unionization, a phenomenon which has properly focused attention on remedies beyond the mere slap on the wrist inherent in a cease and desist order and the license fee that a back pay award minus interim earnings constitute for employer misconduct designed to prevent unions. The only tool available today is an injunction against unfair labor practices – an approach which my Board used more than any other during the 73 year history of the NLRA. Inextricably related to this is the inability or unwillingness of the Board itself to act responsively and responsibly in processing cases without delay.

* [Increase] the use of more rulemaking in lieu of adjudication. The emphasis should be on representation – voting cases which are in special need of acceleration – and these Board rulings should not be appealable to the courts.

* The worst thing that a new Obama Board can do is to simply come into office and reverse the decisions of the Bush II Board through adjudication, bad as so many of them are! If a new approach such as rulemaking is undertaken—my Board unsuccessfully tried to do it in the hostile political environment of the ‘90’s—this will involve all parties in the decision making process and make it more difficult for previous decisions to be reversed with ease. The Board will be more depoliticized and rapid oscillations between labor and management with each new administration diminished.ration diminished.

These are just excerpts of his recommendations, so they don't really do his arguments justice. Gould also encourages experimentation with efforts to protect employee rights through processes involving employers, citing to the experience of a multinational British company that he acted as a monitor for.

As will not come as a surprise to many readers, I like reforms that at least recognize the interests of both sides. I don't have rose-colored glasses about getting real consensus on many of these issues, but I think an Obama Board (and Democratic Congress) could create reforms that work better and have less backlash by at least taking employers' interests into account. One need only look at the reaction to the September Massacre to see what the opposite tactic would do.

As for the specific proposals, Gould is thinking outside of the box as usual. I'm not sure the extent to which "conditional agreements" would actually work (and the possibility for sweetheart deals must be dealt with), but I like the idea of giving employees more information. Gould also identifies a major, yet underappreciated, effect of EFCA--the arbitration clause. Like much of EFCA, I'm of a mixed mind on this one. Negotiating a first contract is both enormously important and difficult. However, the arbitration process isn't always pretty (see US Postal Service). But, I'm not sure what a better choice would be (please post any ideas).

The push for more rulemaking isn't a new one (most recently, Roberto Corrada just gave a paper on this at the Third Annual Colloquium), but it's idea whose time is long overdue. I fully agree that representational issues are the logical place to start. The Board is best with those issues and the issues involved are well-suited to rulemaking. And, as Gould notes, rulemaking provides an opportunity for longer-lasting policies--both because both sides have input as well as the relative "stickiness" of formal rules.